Commission Recommends All Judges for Retention

The Judicial Performance Evaluation Commission today recommended retention for all of the judges seeking it, spokeswoman Michele Wojciechowski said. Two judges -- Appeals Court Judge Andy Bennett and Criminal Appeals Court Judge Camille R. McMullen -- had received preliminary negative recommendations, but were given the opportunity to file written responses and appear before the commission today in Nashville before a final vote. Court of Criminal Appeals Judge Jerry L. Smith also faced a negative recommendation, but decided not to seek another term, the Tennessean reported earlier.

Today's Opinions

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This is a termination of parental rights case focusing on the three minor children (“the Children”) of father, Lawrence P. (“Father”). A termination petition was filed by the Tennessee Department of Children’s Services (“DCS”), alleging the statutory grounds of abandonment by willful failure to visit, abandonment by willful failure to support, and abandonment by engaging in conduct prior to incarceration showing a wanton disregard for the welfare of the Children. Following a bench trial, the trial court granted the petition upon its findings, by clear and convincing evidence, that (1) Father had abandoned the Children by willfully failing to support them and (2) Father had abandoned the Children by engaging in conduct prior to his incarceration exhibiting a wanton disregard for the welfare of the Children. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Children’s best interest. Father has appealed. Although we reverse the trial court’s finding regarding the ground of abandonment for willful failure to support for lack of adequate evidence, we affirm the judgment of the trial court terminating Father’s parental rights based upon the statutory ground of abandonment by engaging in conduct prior to incarceration showing a wanton disregard for the welfare of the Children.

Winston Payne brought this action against his former employer, CSX Transportation, Inc., under the Federal Employers’ Liability Act (“FELA”), alleging that CSX negligently exposed him to asbestos, diesel fumes, and radioactive materials in the workplace causing his injuries. The jury returned a verdict finding (1) that CSX negligently 1 caused Payne’s injuries; (2) that CSX violated the Locomotive Inspection Act or safety regulations regarding exposure to asbestos, diesel fumes, and radioactive materials; and (3) that Payne’s contributory negligence caused 62% of the harm he suffered. The jury found that “adequate compensation” for Payne’s injuries was $8.6 million. After the jury returned its verdict, the trial court, sua sponte, instructed the jury, for the first time, that, under FELA, its finding that CSX violated a statute or regulation enacted for the safety of its employees meant that plaintiff would recover 100% of the damages found by the jury. The court sent the jury back for further deliberations. It shortly returned with an amended verdict of “$3.2 million @ 100%.” Six months after the court entered judgment on the $3.2 million verdict, it granted CSX’s motion for a new trial, citing “instructional and evidentiary errors.” The case was then assigned to another trial judge, who thereafter granted CSX’s motion for summary judgment as to the entirety of the plaintiff’s complaint. The second judge ruled that the causation testimony of all of plaintiff’s expert witnesses was inadmissible. We hold that the trial court erred in instructing the jury, sua sponte, on a purely legal issue, i.e., that the jury’s finding of negligence per se under FELA precluded apportionment of any fault to the plaintiff based upon contributory negligence, an instruction given after the jury had returned a verdict that was complete, consistent, and based on the instructions earlier provided to it by the trial court. We further hold that, contrary to the trial court’s statements, the court did not make any prejudicial evidentiary rulings in conducting the trial, and that its jury instructions, read as a whole, were clear, correct, and complete. Consequently, the trial court erred in granting a new trial. We remand to the trial court. We direct the first trial judge to review the evidence as thirteenth juror and determine whether the jury verdict in the amount of $8.6 million is against the clear weight of the evidence. If it is not, the trial judge is directed to enter judgment on that verdict. If, on the other hand, the trial judge finds that the larger verdict is against the clear weight of the evidence, the court is directed to enter a final judgment on the jury’s verdict of $3.2 million. The trial court’s grant of summary judgment is rendered moot by our judgment. However, in the event the Supreme Court determines that our judgment is in error, we hold that the grant of summary judgment was not appropriate.

This is a termination of parental rights action focusing on the two minor children (“the Children”) of mother, Sandra W. (“Mother”). A termination petition was filed by the Tennessee Department of Children’s Services (“DCS”) after the third custody proceeding involving the Children. The petition alleges the statutory grounds of abandonment, substantial noncompliance with the permanency plans, and persistent conditions. Following a bench trial, the trial court granted the petition upon its findings, by clear and convincing evidence, that (1) Mother had abandoned the Children, (2) Mother had failed to substantially comply with the permanency plans, and (3) the conditions leading to removal still persisted. The court further found, by clear and convincing evidence, that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. We affirm.

TN Court of Criminal Appeals

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

A jury convicted Omar Biviano (“the Defendant”) of one count of aggravated robbery, one count of carjacking, and one count of facilitation of employing a firearm during the commission of a dangerous felony. After a hearing, the trial court sentenced the Defendant as a Range I offender to an effective term of twelve years’ confinement. In this direct appeal, the Defendant contends that the evidence was not sufficient to support his convictions and that his sentence is excessive. Upon our thorough review of the record and applicable law, we affirm the judgments of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Roosevelt Brice, Jr. (“the Defendant”) was convicted by a jury of attempted premeditated first degree murder and aggravated assault. Following a sentencing hearing, the trial court sentenced the Defendant to twenty-five years’ incarceration for his attempted premeditated first degree murder conviction and fifteen years’ incarceration for his aggravated assault conviction. The trial court ordered that the two sentences be served concurrently for a total effective sentence of twenty-five years. In this direct appeal, the Defendant challenges the sufficiency of the evidence supporting his conviction for attempted premeditated first degree murder. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

James E. Thomas, Memphis, Tennessee, for the appellant, Stephen McKinley.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Murial Malone, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Stephen McKinley, appeals the denial of his petition for post-conviction relief, arguing that his guilty plea was unknowing and involuntary. Following our review, we affirm the denial of the petition.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Senior Counsel; Michael L. Flynn, District Attorney General; and Ellen Berez, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Herbert B. Ward, was convicted by a Blount County Circuit Court jury of especially aggravated kidnapping, aggravated kidnapping, and domestic assault. See T.C.A. §§ 39-13-305; 39-13-304; 39-13-111. He received a seventeen-year sentence for especially aggravated kidnapping, a nine-year sentence for aggravated kidnapping, and an elevenmonth, twenty-nine-day sentence for domestic assault, all to be served concurrently for an effective seventeen-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to sustain his conviction for aggravated kidnapping of his wife and (2) the evidence is insufficient to sustain his conviction for especially aggravated kidnapping of his eleven-year-old daughter. The State contends that with regard to the kidnapping convictions, the trial court did not instruct the jury in accord with State v. White, 362 S.W.3d 559 (Tenn. 2012), but that the error was harmless beyond a reasonable doubt. We vacate the especially aggravated kidnapping conviction and dismiss the charge. We reverse the aggravated kidnapping conviction and remand for a new trial. We affirm the domestic assault conviction.

Today's News

Legal News

Middle Tenn. Court Most Productive in America

The Middle District of Tennessee was found to be the most productive federal district court in America, based on 2013 data from the Administrative Office of the United States Courts. The listing is created by averaging the time of the bench, time on trial, number of civil cases, and number of criminal cases tried per active district judge in each district court.

Commission to Review 3 for Chancery Court Opening

The Governor’s Commission for Judicial Appointments will consider three applicants when it meets next week in McKenzie to select nominees for the chancery court vacancy in the 24th Judicial District, which serves Benton, Carroll, Decatur, Hardin and Henry counties. The candidates are Huntingdon attorney Charles L. Trotter Jr., Savannah attorney Carma Dennis McGee and Paris attorney Vicki Hodge Hoover. The vacancy was created by the death of the Hon. Ron E. Harmon last year.

Ramsey Releases Legal Opinion on 'Guns in Cars' Law

Lt. Gov. Ron Ramsey yesterday released a legal opinion from the legislature’s Office of Legal Services that says employees are protected from being fired for carrying guns in their vehicles on private property. The opinion runs counter to one issued last year by Attorney General Bob Cooper, which says that since Tennessee is an at-will state, companies could still fire employees for violating policies on guns. "It is unfortunate the Democrat Attorney General has muddied the waters by calling this law into question, but his opinion is not binding," the Nashville Business Journal reports Ramsey saying. "It has no more force of law than any other lawyer's opinion."

TBA Leaders Gather in Nashville for Annual Conference

Tennessee Bar Association leaders are meeting in Nashville this weekend as part of the annual TBA Leadership Conference. In addition to meetings of the House of Delegates, Board of Governors and several committees, there is also educational programming and the annual Public Service Luncheon, which on Saturday honors the public service committment of lawyers across the state. Watch for coverage from the events next week.

Contributor Misses Deadline to Appeal Brentwood Ban

The Contributor newspaper missed a December deadline to appeal to the U.S. Supreme Court to overturn a ruling banning street sales of the newspaper in Brentwood, the Tennessean reports. The American Civil Liberties Union filed a lawsuit on behalf of The Contributor after several vendors were fined for selling the papers along the roads, claiming that the city codes were unconstitutional. In 2011, the city loosened an ordinance that banned selling items and advertising in the right of way to allow the paper and similar materials to be sold on sidewalks, just as long as the vendors didn’t venture into the streets. The Contributor continued its legal case, but a panel of three judges from the Sixth Circuit Court of Appeals in Cincinnati upheld a U.S District Court decision in favor of the city of Brentwood.

Editorial: New Lawyers Lions Club Has Promise

In a Daily News Journal opinion piece, the editorial board praises the creation of the Murfreesboro Downtown Barristers Lions Club. The new service organization is geared towards law professionals who are working to make a difference outside of the courtroom. Chief Justice Gary Wade will be the keynote speaker at the Charter Night held on Feb. 4 at Parthenon Grill. “We see this club as win for the club and the community,” the publication stated.

CASA in Need of Volunteers

Court Appointed Special Advocates (CASA) of Northeast Tennessee needs volunteers to be the voice of an abused and neglected child in the community. Over 30 children are in need of volunteers to ensure they are in a safe, permanent home by making sure their needs are being met through the court and children's services. CASA provides advocacy training starting with an information session on Jan. 28 from 5:30-6:30 p.m. For more information, contact program coordinators Lauren Pealor or Emily Tester. WJHL News has the story.

MLK Speaker Says Justice Thomas Not Representing Blacks

Francis Guess, a longtime civil rights leader and former commissioner of two state agencies under a Republican governor, said yesterday that Supreme Court Justice Clarence Thomas isn’t getting the job done as a representative of African-Americans on this nation’s highest court. During the Waller law firm’s annual celebration of the life of Martin Luther King Jr., Guess said Thomas — the only African-American among the nine justices — does not truly understand black people’s concerns. The Tennessean has more.

General Assembly News

AG Election Proposal Advances to Full Senate

The attorney general would stand for popular election rather than being appointed by the state Supreme Court under a proposed constitutional amendment that this week advanced to a full Senate vote. According to the Memphis Daily News, this is the second proposal to surface for changing the way the AG is selected -- the full chamber voted 22-9 last year in favor of a proposal by Sen. Mark Green, R-Clarksville, to have the attorney general appointed by a joint convention of the General Assembly. The rival measures are still at the earliest steps of a lengthy process for constitutional amendments. In order to be placed on the ballot in 2018, they must pass both chambers during the General Assembly that ends this year, and again by a two-thirds vote during the next two-year session.

Kelsey, Faison Call for Yearly Balanced Federal Budget

State Sen. Brian Kelsey, R-Germantown, and State. Rep. Jeremy Faison, R-Cosby, filed joint resolution SJR 0493 calling for a constitutional convention that would require Congress to balance the federal budget each year. Specifically, the resolution states that in the absence of a congressional declaration of war or an economic recession, the total of all federal appropriations made by the Congress for any fiscal year may not exceed the total of all estimated federal revenues for that fiscal year. The Chattanoogan has more.

Election 2014

Former Prosecutor Running for Criminal Court Judge

Attorney Lisa Nidiffer Rice announced she is running for 1st Judicial District Criminal Court Judge in the Republican primary. The judgeship is currently held by Robert Cupp. The position covers all four counties — Washington, Carter, Unicoi and Johnson — in the 1st District, as does the Part II judgeship held by Judge Stacy Street. Currently, Street has no challengers. Rice has been in private practice since 1998 and prior to that served as a prosecutor in the district attorney general’s office. The Johnson City Press has more.

Knoxville Businessman to Run for State Rep.

Knoxville Businessman Jason Emert announced his plan to run in the Republican primary to unseat 13th District State Rep. Gloria Johnson, a freshman Democrat. Emert, who graduated from the University of Miami Law School but did not take the Tennessee bar exam, has already raised $100,000 in donation pledges and began campaigning full-time Tuesday. Knoxnews has more.

BPR Actions

Knox County Lawyer Censured

Thomas Francis DiLustro received a public censure for accepting fees from a client without performing any legal work in the case and deceived his client into believing that a civil action had been filed when it had not. He constructively withdrew from the case without returning unearned fees to the client. In another case, DiLustro failed to turn over his client’s file upon request at the conclusion of the representation. In both instances, DiLustro failed to adequately communicate with his clients and failed to respond to requests for information from the Board of Professional Responsibility. Download the BPR notice.

Knox County Lawyer Temporarily Suspended

Billy J. Reed was temporarily suspended from the practice of law for failing to respond to the Board of Professional Responsibility regarding a complaint of misconduct. Download the BPR notice.

Upcoming

MLK Day Events Planned Across the State

A full slate of activities are scheduled across the state for the celebration of Martin Luther King Jr. Day on Monday. “The role he (Dr. King) served was an incredible and important role in regards to civil rights," General Sessions Court Judge and Sevier County MLK. Day Celebration Committee Chair Dwight Stokes said. "There were so many problems in our country in regards to race, and it needed to be addressed. I have a great appreciation for all that King accomplished.” Visit the Mountain Press, the Memphis Daily News and the Nashville Scene for information on activities throughout the state.

Member Benefits

Health Insurance Exchange Now Available Through TBA

Fast and easy health insurance enrollment is now available through the TBA Health Insurance Exchange operated by JLBG Health. Affordable health insurance coverage is important, but getting it can be complicated, frustrating and expensive. The TBA Health Insurance Exchange can help make the whole process simpler and easier to navigate.

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.